Re-viewing history: the use of the past as negative precedent in United States v. Virginia.

"Our Nation has had a long and unfortunate history of sex discrimination."(1) Twenty-five years ago, a plurality of the Supreme Court admitted a truth long known to many. Modern Americans must still struggle with this history of discrimination. Its effects continue to be felt, less obvious but ongoing. What role, then, does history play for the modern world? What role can it play in the ongoing effort to move towards a deeper realization of equality? There is, of course, no single answer.(2)

One way to approach these questions is to recognize that many of the standards used in equal protection jurisprudence--in race as well as sex discrimination cases--are designed in reference to a past that is now almost universally recognized to be "wrong." State actors may not depend on "overbroad" generalizations to make "judgments about people that are likely to ... perpetuate historical patterns of discrimination."(3) Qualified individuals may not be excluded from activities based on "fixed notions concerning the roles and abilities of males and females."(4) And, once such tests have determined that a given exclusion is unconstitutional, a proper remedy strives to "eliminate the discriminatory effects of the past" and to "bar like discrimination in the future."(5)

But such self-consciously revolutionary equal protection standards function within a legal system premised on precedent. There is a tension inherent in a jurisprudence that defines itself in counter-distinction to the past, yet works within a structure that embraces a conservative adherence to past decisions as precedent. In United States v. Virginia,(6) a case challenging the Virginia Military Institute's (VMI) all-male admissions policy, the school defended its exclusionary practice as a necessary and legitimate expression of its long-celebrated traditions. Writing for a six-justice majority, Justice Ginsburg used historical analogies to turn the school's arguments upside down and thus discredit its claims as antiquated and anachronistic. This Note develops a theory of "negative precedent" that rationalizes the role history played in the VMI case and, more generally, the constructive role that history can, and does, play in areas of the law where the past no longer merits emulation.

Part I begins by diagramming the logical structure of an argument from precedent and summarizing standard rationales put forward as justifications for adherence to precedent. Negative precedent inverts familiar legal reasoning. Abandoned past practices can be used to argue, through a process of negative inference, against analogous modern practices. Equally important, negative precedent acknowledges the injuries caused by past practices that now seem unacceptable.

A close reading of the VMI decision fleshes out this theory. Part II gives background on the case and then shows how Justice Ginsburg's treatment of the standard of scrutiny--defining intermediate scrutiny as requiring an "exceedingly persuasive" justification--shifts the tenor of the Court's analysis by positing a "biased" observer who views examples of sex-based classifications as presumptively invalid. Such skeptical scrutiny ensures that the reader will recognize unqualified examples of historical discrimination as negative precedent.

Parts III and IV illustrate uses of negative precedent. VMI claimed that women could not be allowed to participate in the school's famous adversative training method because the changes that would be required to include them would destroy the effectiveness of the program. In other words, the school asserted that it faced a catch-22. Part III shows how Justice Ginsburg drew historical analogies to similar past assertions, now disproved, to defuse the school's arguments. Part IV demonstrates that by emphasizing the changing legal standard, negative precedent also allowed Justice Ginsburg to recognize the injury done to women by institutional discrimination that would now be judged unconstitutional.

Since history does not come with labels attached, a reference to the past may sound positive to some and negative to others. Part V discusses the risks that history's contestability poses for the use of negative precedent and confronts the possibility that an appeal to tradition may actually advocate for change. It concludes by suggesting that a richer view of tradition as both positive and negative allows progress to be grounded in history. Finally, a brief epilogue in Part VI suggests that negative precedent can also serve as a model for reform. Recognizing the central role that negative precedent played in this important decision deepens an understanding of the present value of the past.

THEORY AND JUSTIFICATIONS FOR PRECEDENT

The theory of negative precedent proposed in this Note builds on scholarly treatments of the standard use of precedent. Section A presents fairness, predictability, and efficiency rationales typically advanced as justifications for adherence to the past, as well as a separate tradition-based rationale developed by Anthony Kronman.(7) So long as the societal consensus remains unchanged, a reference to a past decision simultaneously serves all of these rationales. But in areas of the law such as equal protection jurisprudence, sometimes judges are willing to sacrifice predictability and efficiency to satisfy changing understandings of equality and fairness. In such cases, predictability and efficiency are best served by ignoring the no-longer-controlling precedent. The traditionalist justification and a different conception of fairness, by contrast, mandate that the past not be forgotten. Section B constructs a theory of "negative precedent" that provides an analytic framework for rationalizing the ongoing use of such past precedents.

(Positive) Precedent

The bare bones of an argument from precedent are both familiar and easily stated: Because X was treated a given way, a similar case, X', should be decided the same way.(8) The first step of an argument from precedent is factual. Since the facts of the second situation will never match those of the first exactly, the argument begins by showing that cases are relevantly similar.(9) That is necessarily a process of abstraction: Extraneous details of the two fact patterns are stripped away to reveal essential facts that define the universe of Xs. Once a judge determines that X' is "like" X, the case is decided. A pure rule of precedent dictates absolutely that the later case (and any and all other members of the universe of Xs) be resolved in the same way. The precedent controls simply because it is prior; the deference awarded the past decision is not premised on the merit of the given decision. It has force even if the result it requires is by some measure "wrong."

Thus, an argument from precedent can be distinguished from the more common (and often overlapping) argument from experience. In an argument from experience, the past is used as a means of making decisions in the present, but the past decision carries no weight beyond what it can teach about the present. In other words, "[t]he probability that the present [situation] will be like the past both determines and exhausts the value of the previous experience."(10) If society thinks that the past decision was rightly decided, then an argument from experience will suggest the same result as an argument from precedent. But if the past decision now seems erroneous or if the result it requires for the current case is in some sense less than ideal, then the argument from experience leads to a different result than the argument from precedent.

What can justify adherence to a past decision if it is likely that following it results in a present mistake? Three claims are standard throughout the literature.(11) The first suggests that fairness dictates that like cases be treated alike regardless of when they occur. The second argument posits that consistent decisions benefit individuals by allowing them to plan their lives sensibly around a predictable set of rules. And the third recognizes that adhering to precedent promotes efficient decisionmaking and builds confidence in decisionmaking institutions. Following past decisions is functionally necessary because time only flows forward, but it is not particularly significant that these cases are part of history.(12) Precedent achieves rational goals that are inherently ahistorical.

The fairness, predictability, and efficiency rationales use the past as a means to an end, rather than an end in itself. Therefore, they cannot explain (and in fact, as will be discussed below, they actually argue against) reference to past cases that are no longer considered controlling precedent. In other words, they do not explain the use of negative precedent. Anthony Kronman, however, presents a distinct claim for adherence to precedent that is explicitly premised on the pastness of the decision: tradition.(13) Arguing that an ability to remember across generations is an essential and distinctive element of human nature, he concludes that humans are born into a contract of "interwoven obligations."(14) Each generation has a duty to preserve the achievements of its ancestors: "The past is not something that we, as already constituted human beings, choose for one reason or another to respect; rather, it is such respect that establishes our humanity in the first place."(15) If "respecting" the past is an integral part of living as humans in the present, what should we do with aspects of the past that no longer seem to merit respect?

Negative Precedent

Strict adherence to precedent is inherently conservative. If the societal consensus about the appropriateness of a given opinion is maintained, a reference to the decision simultaneously serves the fairness, predictability, efficiency, and traditionalist rationales. As society grows and changes, however, some past decisions come to seem "wrong." In some cases, legislative bodies...